Opinion
6 Div. 375.
May 23, 1929.
Von L. Thompson, Cora R. Thompson, Mullins Jenkins, and Harrison Kendrick, all of Birmingham, for appellant.
The fact that the litigation passed through more than one division of the court, or that the judge who made the order was not the one who tried the merits of the action, did not impair the validity of the order. Wolcott v. Stewart, 119 Kan. 407, 239 P. 765; State v. Sullivan (Fla.) 116 So. 255; De Leon v. Walters, 163 Ala. 499, 50 So. 934, 19 Ann. Cas. 914; 7 R. C. L. 1068; Murphy v. State, 4 Ala. App. 14, 58 So. 671; Foley v. Utterback, 196 Iowa, 956, 195 N.W. 721; Ransome-Crummey Co. v. Wood, 40 Cal.App. 355, 180 P. 951; Hertzen v. Hertzen, 104 Or. 423, 208 P. 580; Piazza v. McDermott, 156 La. 930, 101 So. 269.
Horace C. Wilkinson, of Birmingham, for appellee.
Whenever the presiding judge of Jefferson county assigns a case to an associate judge, and it is set for hearing before him, no other associate judge has the right to interfere with the jurisdiction of the judge before whom it is set for hearing. Code 1923, § 6693; Eastburn v. Canizas, 193 Ala. 574, 69 So. 459; Swope v. Swope, 173 Ala. 157, 55 So. 418, Ann. Cas. 1914A, 937; So. Hdwe. Co. v. Lester, 166 Ala. 86, 52 So. 328; Gray v. So. R. Co., 151 Ala. 215, 43 So. 859, 11 L.R.A. (N.S.) 581; Finch v. Smith, 146 Ala. 644, 41 So. 819, 9 Ann. Cas. 1026; Cole v. Norton (Mo.App.) 251 S.W. 723; Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; Hirsch v. Hirsch (Mo.App.) 273 S.W. 151; 15 C. J. 1134, 1161.
While we do not approve all that is said in the opinion of the Court of Appeals, we concur in the result.
The authority to grant or refuse a continuance of a pending cause resides in the court, and not the judge, and an application for continuance is, as we have respectively held, addressed to the sound discretion of the court, and will not be reviewed, unless the discretion is grossly abused, and then only on appeal, where the facts may be fully presented.
The power and authority to set aside a continuance and reset the case for trial is likewise a power to be exercised by the court, and rests upon the same principles.
Therefore, conceding that the court, while being presided over by Judge Snyder, rightfully exercised the power to continue, still it appears from the finding of the Court of Appeals that the case in question had been regularly assigned for trial, by the Presiding Judge, to Judge McElroy's docket, and the court presided over by him, in the exercise of its discretion, had the authority to set the continuance aside and reset the case for trial, and mandamus will not be granted to review the exercise of this discretion.
Though the constitutionality of Acts 1927, p. 637, amending section 6693 of the Code, is argued, the exigency of the case does not require the question to be decided.
Writ denied.
ANDERSON, C. J., and SAYRE, THOMAS, and BROWN, JJ., concur.